UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ZAYN AL ABIDIN MUHAMMAD 

HUSAYN (ISN #10016), 

Petitioner, 

v. 

LLOYD AUSTIN, et al., 

Respondents. 

Civil Action No. 08-1360 

(EGS) 

MEMORANDUM OPINION AND ORDER 

 Pending before the Court is journalist Raymond Bonner’s 

(“Movant”) Motion to Intervene and Unseal. See ECF No. 317. Upon 

careful consideration of the motion, opposition, reply thereto, 

the notices of supplemental authority submitted by movant and 

the Government, the applicable law, and for the reasons 

explained below, the Motion is GRANTED IN PART, DENIED IN PART, 

AND FOUND AS MOOT IN PART. 

 Following the classification review ordered by the Court 

of, among other records in this case, those Movant seeks to 

unseal, see Min. Order (Apr. 22, 2016); the Government filed on 

the docket public versions of all the records Movant seeks to 

unseal, see generally docket for Civil Action No. 08-1360. 

Fourteen of the records contain no redactions; the remaining 
2 

twenty-two contain redactions.1 Accordingly, the motion is MOOT

as to the fourteen records with no redactions. 

I. Movant May Intervene In This Case 

 “[T]hird parties may be allowed to permissively intervene 

under [Fed.] Rule [Civ. P.] 24(b) for the limited purpose of 

seeking access to materials that have been shielded from public 

view either by seal or by protective order.” E.E.O.C v. Nat’l 

Children’s Ctr. Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998). 

Here, Movant seeks to intervene to gain access to materials that 

are sealed on the docket in this case, and also gain access to 

materials that have been designated by Executive Branch 

authorities as classified. See generally Mem. of Law in Supp. of 

Mot. to Intervene (“Mot. to Intervene”), ECF No. 317-1. In view 

of the liberal interpretation of Rule 24(b) by the Court of 

Appeals for the District of Columbia Circuit (“D.C. Circuit”), 

see Nat’l Children’s Ctr. Inc., 146 F.3d at 1045; and the lack 

of opposition by the Government, see Opp’n, ECF No. 411 at 4 

n.3,2 the Court GRANTS IN PART the motion and permits Movant to 

intervene for the limited purpose of seeking access to sealed 

and classified records. See In re Guantanamo Bay Detainee 

Litigation, 624 F. Supp. 2d. 27, 31 (D.D.C. 2009)(Hogan, J.) 

1 ECF Nos. 333 and 350 are the same record. 

2 When citing electronic filings throughout this opinion, the 

Court cites to the ECF header page number, not the original page 

number of the filed document. 
3 

(allowing members of the press to intervene in this action for 

the limited purpose of opposing the government’s Motion to 

Confirm Designation of Unclassified Returns as “Protected"). 

II. The Court Will Assume A Qualified First Amendment Right of 

Access 

 

Movant seeks to intervene to gain access to materials that 

are sealed on the docket in this case, and also to gain access 

to materials that have been designated by Executive Branch 

authorities as classified. See generally Mot. to Intervene, ECF 

No. 317-1. Following the completion of the briefing on the 

instant motion, the D.C. Circuit issued an opinion reversing the 

district court opinion upon which Movant relies to assert his 

right of access to classified materials here. See id. at 15, 18 

(citing Dhiab v. Obama, 70 F. Supp. 3d 486 (D.D.C. 2014)). In 

Dhiab, the district court granted news media organizations’ 

motion to intervene and unseal classified videotapes that had 

been filed on the docket in that case. See generally id. The 

D.C. Circuit reversed. See Dhiab v. Trump, 852 F.3d 1087 (D.C. 

Cir. 2017). The panel was unanimous in reversing the district 

court, but divided on whether the First Amendment guarantees a 

right of public access to classified documents filed in 

Guantanamo Bay habeas corpus proceedings. See id. at 1096, 1098-

1107. 
4 

The panel agreed, however, that “[e]ven if intervenors had 

a qualified First Amendment right of access” to the classified 

materials in that case, national security considerations made 

that access unavailable. See id. at 1096. First, the court noted 

that “[t]he government identified multiple ways in which 

unsealing these recordings would likely impair national 

security,” citing “the government’s expert judgment” as 

expressed in various declarations filed with the Court. Id. The 

court dismissed the district court’s characterization of the 

declaration of the Commander of the Joint Task-Force Guantanamo 

as “speculative,” because while the district court “thought it 

knew better,” it, unlike the Commander, who “made his 

declaration on personal knowledge,” “had no day-to-day 

experience with the people being detained at Guantanamo and had 

no special insight into their mindset.” Id. at 1097. The court 

stated that 

[i]t bears repeating that the government “has 

a compelling interest in protecting ... the 

secrecy of information important to our 

national security....” McGehee, 718 F.2d at 

1143 (quoting Snepp v. United States, 444 U.S. 

at 509 n.3, 100 S.Ct. 763 (per curiam) 

(emphasis and alteration in original)). See 

also C.I.A. v. Sims, 471 U.S. 159, 175, 105 S.

Ct. 1881, 85 L. Ed. 2d 173 (1985); United 

States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 

1989). The district court did not disagree

with the “SECRET” classification of these 

recordings, and neither did the intervenors. 

By definition, “the unauthorized disclosure of 

[the recordings] reasonably could be expected 
5 

to cause serious damage to the national 

security.” Executive Order No. 13,526 § 

1.2(a)(2). The district court had no basis for 

ruling that publicly releasing the recordings 

could not be expected to cause such harm. 

Id. at 1098. 

Accordingly, the Court will assume a qualified First 

Amendment right of access to the classified information for the 

purpose of this motion and will evaluate whether the Government 

has met its burden under the Press-Enterprise II3 standard. 

III. Analysis 

A. The Information Is “Properly Classified” 

Executive Order 13526 (“E.O.”), governs the classification 

of national security information. The E.O. authorizes 

classification “only if all of the following” four criteria are 

met: (1) an original classification authority classifies the 

information; (2) the U.S. Government owns, produces, or controls 

the information; (3) the information is within one of eight 

protected categories listed in Section 1.4 of the E.O.; and (4) 

the original classification authority determines that the 

unauthorized disclosure of the information reasonably could be 

expected to result in damage to the national security, and 

identifies or describes that damage. E.O., § 1.1(a). 

3 Press-Enterprise Co. v. Superior Court of California for the 

County of Riverside, 478 U.S. 1 (1986).
6 

Here, the declarations first confirm that the information 

was classified by an original classification authority. See DoD 

Decl., ECF No. 411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4 

n.1. Second, they confirm that the U.S. Government owns, 

produces, or controls the information. See DoD Decl., ECF No. 

411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4 n.1. Third, they 

confirm that the information falls within one of the eight 

protected categories. See DoD Decl., ECF No. 411-1 at 3 n.3; FBI 

Decl., ECF No. 411-2 at 4 n.1. The Government explains that 

here, the categories are military operations, E.O. 13526 § 

1.4(a); foreign government information, E.O. 13526 § 1.4(b); 

intelligence activities, E.O. 13526 § 1.4(c); foreign relations, 

including confidential sources, E.O. 13526 § 1.4(d); or 

capabilities relating to the national security, E.O. 13526 § 

1.4(g). Fourth, the declarations confirm that unauthorized 

disclosure reasonably could be expected to result in 

identifiable or describable damage to the national security. See

DoD Decl., ECF No. 411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4 

n.1.4

Movant fails to contest whether any of these requirements 

have been met. See generally Reply, ECF No. 436. Rather, he 

4 Although there is no unclassified version of the declaration 

from the Central Intelligence Agency (“CIA”), the Government 

addresses the fourth criteria as to CIA information in its 

Opposition briefing. See Opp’n, ECF No. 411 at 12, 38-40. 
7 

makes a number of broad, and largely unsupported claims: that 

“[m]uch of the redacted information withheld could not properly 

be classified under Executive Order 13526,” id. at 21; that 

“[t]he docket . . . reveals a history of reckless 

overclassification, id. at 22; and raises the issue of “[t]he 

CIA’s documented misuse of its classification authority 

regarding [Petitioner],” id. at 23-24. 

Based on the record here, the Court concludes that all four 

requirements have been met here. With regard to the first three 

requirements, the Court has explained supra how they were met. 

With regard to the fourth, the Court appropriately defers to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); but at the 

same time “must assure [itself] that the reasons for the 

classification are rational and plausible ones.” McGehee v. 

Casey, 718 F2d 1137, 1149 (D.C. Cir. 1983); see also Morley v. 

CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007)(noting in the context 

of the Freedom of Information Act (“FOIA”) that “a plausible 

assertion that information is classified” is all that is 

required to invoke Exemption 1 covering classified information). 

In infra Section III.B.1., the Court concludes that it is both 
8 

rational and plausible that the official disclosure of the 

information at issue in each category reasonably could be 

expected to result in damage to the national security that is 

identified or described. For these reasons, the Court concludes 

that the information is properly classified. 

B. Application of the Press-Enterprise II Standard 

In Press-Enterprise II, the Supreme Court considered 

whether the public has “a First Amendment right of access to the 

transcript of a preliminary hearing growing out of a criminal 

investigation.” Press-Enterprise Co. v. Superior Court of 

California for the County of Riverside, 478 U.S. 1, 3 (1986). To 

answer that question, the Supreme Court determined that the 

government must demonstrate: (1) a compelling interest in nondisclosure; (2) a substantial probability that disclosure will 

harm these interests; and (3) there is no alternative to 

nondisclosure that will protect the government’s compelling 

interests and the restriction is narrowly-tailored. See id. at 

13-14. 
9 

1. The Government Has Demonstrated A Compelling 

Interest in Nondisclosure of Each Category of 

Classified Information At Issue5

The DoD affiant avers “on personal knowledge and 

information made available to [him] in the course of [his] 

official duties” that 

This declaration is provided to explain the 

bases for the redaction of DoD intelligence 

information in the public versions of the 

filing submitted in response to the Court’s 

Minute Orders of April 22, 2016 and June 10, 

2016 pertaining to the Motion by Non-Party 

Raymond Bonner to Intervene and Unseal Court 

Records (ECF No. 317-1). This information 

meets the requirements for classified national 

security information pursuant to E.O. 13526 

and is properly classified. It is not 

available for declassification and public 

release, or release to individuals not having 

both the appropriate security clearances, and 

appropriate need to know, to access the 

content of the information pursuant to E.O. 

13526, section 4.1. 

DoD Decl., ECF No. 411-1 ¶ 4. 

a. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Intelligence 

Reports, Including Sources and Methods 

In this category, “DoD and FBI have withheld from 

disclosure information which reveals or could tend to reveal 

intelligence sources, capabilities, or methods.” Opp’n, ECF No. 

5 Movant does not object to nondisclosure with respect to two 

categories: (1) the identities of intelligence personnel and (2) 

the Guantanamo Detention facilities information, see Reply, ECF 

No. 436 at 19-20; accordingly, the Court will not address those 

categories. 
10 

411 at 7. The DoD Declaration, based on the “personal knowledge 

and information made available to me in the course of my 

official duties,” DoD Declaration, ECF No. 411-1 ¶ 1; explains 

that 

Disclosure of information which reveals 

intelligence sources, capabilities or methods 

could lead to the identification of DoD 

intelligence priorities and allocation of 

resources to support those priorities which 

may indicate gaps in our intelligence. In 

particular, information which reveals Human 

Intelligence (HUMINT) and Counterintelligence 

(CI) information and/or these requirements at 

operational and strategic levels is 

classified. It is classified, and closely 

controlled, because it can reveal the 

existence of past and present law enforcement 

operations, past or current intelligence 

operations (including the names of these 

operations), and past and present source 

information, planned operations, and past and 

present intelligence gathering methodologies. 

Public release of classified HUMINT and CI 

gathering, which would likely diminish the 

effectiveness of future operations using those 

methods, if the specifics of this type of 

information were publicly known. Revelation 

could immediately and significantly hinder 

current and future intelligence collection, 

negatively impacting both national security 

and force protection of military activities 

and intelligence operations and putting our 

core personnel and human sources at greater 

risk. 

Id. ¶ 9. 

Movant responds that the Government “provides no evidence 

that withholding information in this category is necessary to 

protect against harm to national security,” asserting that 
11 

“[t]he defense of this category consists entirely of conclusory 

and speculative assertions of harm that are constitutionally 

insufficient.” Reply, ECF No. 436 at 16. However, Movant fails 

to rebut the Government’s citation to Supreme Court precedent 

recognizing a “compelling [government] interest in” “providing 

intelligence sources with an assurance of confidentiality that 

is as absolute as possible.” C.I.A. v. Sims, 471 U.S. 159 

(1985). And the Government has explained precisely how 

disclosure of “intelligence sources, capabilities or methods” 

could damage national security—it “could significantly hinder 

current and future intelligence collection.” DoD Decl., ECF No. 

411-1 ¶ 9. The damage is both identified and described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure.
12 

b. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Factual or 

Intelligence Gathering 

The Government states that “the disclosure of factual 

information uncovered by United States intelligence activities 

would reasonably be expected to harm the same interests as the 

direct disclosure of sources and methods.” Opp’n, ECF No. 411 at 

32. The DoD Declaration explains that disclosure of this 

information “could cause serious harm to national security by 

providing our enemies and adversaries with information about 

intelligence sources and methods, known gaps in intelligence and 

the types of information of interest to the United States” 

thereby adversely impacting the effectiveness of United States 

military and intelligence activities. DoD Decl., ECF No. 411-1 ¶ 

16. 

 Movant responds that the Government’s public justification 

for this category consists of a single sentence—“[c]ontinued 

nondisclosure is therefore necessary to protect the United 

States from hostile activities by these adversaries,” Reply, ECF 

No. 436 at 16; but fails to rebut the Government’s citation to a 

prior decision in this case. In Detainee Litigation II, Judge 

Hogan found that factual intelligence data should be protected 

from release, even where that information is unclassified, 

holding that “names and locations . . . or other locations of 

interest as they pertain to counter-terrorism intelligence 
13 

gathering, law enforcement, or military operations, where the 

Government has not previously acknowledged publicly its 

knowledge of those names or locations.” 787 F. Supp. 2d at 20. 

The Government has explained how disclosure of this 

information could damage national security—in addition to the 

reasons explained supra Section III.B.1.a., disclosure would 

“provid[e] our enemies and adversaries with information about 

sources and methods, knowns gaps in intelligence, and the types 

of information of interest to the United States” thereby 

compromising the effectiveness of intelligence activities. DoD 

Decl., ECF No. 411-1 ¶ 16. The damage is both identified and 

described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure.
14 

c. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Intelligence 

Assessments and Conclusions

 

The Government argues that “[t]he likely harms to national 

security that warrant nondisclosure of intelligence sources and 

methods likewise demonstrate the propriety of the Government’s 

nondisclosure of intelligence conclusions: the analytic products 

of intelligence professionals.” Opp’n, ECF No. 411 at 33. The 

DoD Declaration explains that “[p]ublic disclosure of our 

intelligence assessments and their significance would lead to 

scrutiny or surveillance by terrorist networks, their 

supporters, and other current and potential adversaries.” DoD 

Decl., ECF No. 411-1 ¶ 16. 

Movant responds that the Government’s public defense of 

this category is entirely redacted, Reply, ECF No. 436 at 16; 

but fails to rebut the Government’s citation to caselaw it 

argues establishes that the Government has a compelling interest 

in protecting from disclosure “the analytic products of 

intelligence professionals,” Opp’n, ECF No. 411 at 33-34. 

The Government has explained how disclosure of this 

information could damage national security—“[p]ublic disclosure 

of our intelligence assessments and their significance would 

lead to scrutiny or surveillance by terrorist networks, their 

supporters, and other current and potential adversaries.” DoD 
15 

Decl., ECF No. 411-1 ¶ 16. The damage is both identified and 

described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure.

d. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Interrogation 

Details, Plans and Assessments of 

Effectiveness 

This category includes “[i]nformation about the use, 

effectiveness, or specific details about the implementation of 

many interrogation techniques, including recommendations for 

future interrogation techniques.” Opp’n, ECF No. 411 at 10; see 

also DoD Decl., ECF No. 411-1 ¶ 19 (describing the contents of 

Summary Interrogation Reports (“SIRs” and Memoranda for the 

Record “MFRs”). The DoD Declaration explains that “information 

regarding the use, effectiveness, or specific details about the 
16 

implementation of certain interrogation techniques, including 

recommendations for future interrogation techniques is 

classified.” DoD Decl., ECF No. 411-1 ¶ 20. The DOD Declaration 

clarifies that “the types of interrogation approaches used, as 

they are approved by Executive Order 13491 and included in the 

Army Field Manual” are not classified, but that what is 

classified is 

the manner and strategy in which they were 

employed with a specific detainee or in a 

specific interrogation. Public dissemination 

of the particulars regarding the tactics, 

methodologies and efficacy of certain 

techniques and approaches would lead to 

detainees becoming familiar with such tactics 

an thereby developing their own methods of 

evading such techniques. This could diminish 

the future utility and value of these 

methodologies and techniques as a means to 

gain intelligence vital to protecting our 

national interests. Release of this 

information will therefore inhibit future 

intelligence collection and could cost the 

Government the ability to utilize these 

methods in the future, as well as result in 

the loss of intelligence while new methods are 

being developed to replace those that became 

non-viable due to detainees’ familiarity with 

them. 

Id. ¶ 20. 

 With regard to Interrogation Plans, the DoD Declaration 

explains that such a plan 

lists collection objectives, approach 

techniques, preparation and liaison tasks, and 

an interpreter usage plan. Planned 

interrogation approaches and techniques are 

classified when a given detainee is still in 
17 

detention to allow for continued use to gain 

information to assist with continuing 

intelligence gathering and law enforcement 

investigations. If this information was 

publicly revealed, it could identify the 

existence and nature of a current intelligence 

operation, the types of information that may 

be undergoing exploitation and how the 

information is being actively exploited. Past 

information about interrogation plans is 

classified to prevent disclosure of cumulative 

information about the interrogation process, 

including techniques which were utilized and 

the detainee’s responsiveness to those 

techniques. Such cumulative information could 

be used to formulate counter-interrogation 

techniques. 

Id. ¶ 22. The DoD Declaration states that there are SIRs and 

MFRs of detainees that corroborate aspects of Petitioner’s 

activities. Id. ¶ 23 

 Movant argues that this category should be rejected as a 

basis for any redaction because “[n]o harm can plausibly be 

expected to result from disclosures about the effectiveness of a 

CIA torture program that has already been publicly described in 

detail and judged ineffective, and is now prohibited both by 

executive order and statute.” Reply, ECF No. 436 at 23. However, 

the Government notes that 

[c]ertain categories of information about the 

CIA’s detention and interrogation program are 

not classified . . . including “the fact that 

the detention and interrogation program was a 

covert action program authorized by the 

President by a September 17, 2001 Memorandum 

of Notification, the names a descriptions of 

authorized enhanced interrogation techniques 

used in connection with the detention and 
18 

interrogation program and the specified 

parameters within which the techniques could

be applied, the authorized enhanced 

interrogation techniques applied to 119 

individuals as described in Appendix 2 of the 

Executive Summary of the Committee Study of 

the CIA’s Detention and Interrogation Program 

(“SSCI Report”) officially acknowledged to 

have been in CIA custody, information 

regarding the conditions of confinement, 

treatment, as applied to those 119 individuals 

and mentioned in Appendix 2 of the Executive 

Summary of the SSCI report, and allegations of 

torture, abuse, or mistreatment by those 119 

individuals mentioned in Appendix 2 of the 

Executive Summary of the SSCI report. 

Opp’n, ECF No. 411 at 35 n.28. 

Movant fails to address the authority cited by the 

Government. In the FOIA context, D.C. Circuit concluded “that it 

is both plausible and logical that the disclosure of information 

regarding the interrogation of detainees would degrade the CIA’s 

ability to carry out its mission” and would interfere with “the 

CIA’s ability to effectively question terrorist detainees.” ACLU 

v. Dep’t of Justice, 628 F.3d 612, 625 (D.C. Cir. 2011); see 

also ACLU v. Dep’t of Justice, 681 F.3d 61 (2d Cir. 2012). 

The Government has explained how disclosure of this 

information could cause serious harm to national security—

“[d]isclosure of these details of the effectiveness of 

particular interrogation techniques would ‘diminish the future 

utility and value of these methodologies and techniques as a 

means to gain intelligence’ as they ‘became non-viable due to . 
19 

. . familiarity with’ the techniques by those interrogated in 

the future.” Opp’n, ECF No. 411 at 34 (quoting DoD Decl. ¶ 20). 

The damage is both identified and described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure.

e. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of CIA 

Information Related to the RDI Program That 

Remains Properly Classified 

The Government states that “this information is properly 

classified because disclosure to the public would reasonably be 

expected to raise serious, and in some cases, exceptionally 

grave, harm to national security.” Opp’n, ECF No. 411 at 12 

(citing CIA Decl. and ex parte filing). Movant does not have the 

ability to access classified information and so requests that 

the Court review “the specific redactions predicated on [this] 
20 

category[y], applying the Press-Enterprise II standard and 

demanding explanations from the government about its specific 

redactions.” Reply, ECF No. 436 at 21. 

The Court has reviewed the classified CIA Declaration and 

ex parte filing. The Government has explained how disclosure of 

this information “would reasonably be expected to raise serious, 

and in some cases, exceptionally grave, harm to national 

security.” Opp’n, ECF No. 411 at 12, 38. The harm is both 

identified and described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure. 
21 

f. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Information 

Related to the CIA’s Foreign Liaison 

Relationships 

The Government states that “this information is properly 

classified because disclosure to the public would reasonably be 

expected to cause serious harm to national security.” Opp’n, ECF 

No. 12 (citing CIA Decl. and ex parte filing). Movant does not 

have the ability to access classified information and so 

requests that the Court review “the specific redactions 

predicated on [this] category[y], applying the Press-Enterprise 

II standard and demanding explanations from the government about 

its specific redactions.” Reply, ECF No. 436 at 21. 

The Court has reviewed the classified CIA Declaration and 

ex parte filing. The Government has explained how disclosure of 

this information “would reasonably be expected to cause serious 

harm to national security.” Opp’n, ECF No. 12, 38. The harm is 

both identified and described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 
22 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure. 

g. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of Clandestinely 

Collected Foreign Intelligence Information 

Collected by the CIA 

The Government states that the release of the foreign 

intelligence information collected by the CIA must be prevented 

to avoid harms to national security. Opp’n, ECF No. 411 at 12 

(citing CIA Decl.). Movant does not have the ability to access 

classified information and so requests that the Court review 

“the specific redactions predicated on [this] category[y], 

applying the Press-Enterprise II standard and demanding 

explanations from the government about its specific redactions.” 

Reply, ECF No. 436 at 21. However, Movant fails to address the 

Government’s arguments set forth below. 

The Government argues that disclosure of this information 

would be likely to harm national security because “in the 

intelligence field, disclosure of a discrete piece of 

information be itself may be innocuous, but in conjunction with 

other, seemingly harmless bits of information, may reveal 

sensitive information that could harm national security.” Opp’n, 

ECF No. 411 at 38. 
23 

The Court has reviewed the classified CIA Declaration. The 

Government has explained how disclosure of this information 

would be likely to harm national security. The harm is both 

identified and described. 

In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure.

h. The Government Has Demonstrated A Compelling 

Interest in Non-Disclosure of CIA 

Administrative Information 

The Government states that some types of administrative 

information—such as the markings used for documents and other 

information—must be withheld from disclosure “where such 

information is classified to avoid harms to national security.” 

Opp’n, ECF No. 411 at 12, 39 (citing CIA Decl.). Movant does not 

have the ability to access classified information and so 

requests that the Court review “the specific redactions 
24 

predicated on [this] category[y], applying the Press-Enterprise 

II standard and demanding explanations from the government about 

its specific redactions.” Reply, ECF No. 436 at 21. 

The Court has reviewed the classified CIA Declaration. The 

Government has explained how disclosure of this information 

would be likely to harm national security. The harm is both 

identified and described. 

 In view of the deference the Court properly gives to the 

considered judgment of the Executive Branch, see e.g., Ctr. for 

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 

(D.C. Cir. 2003)(“[W]e have consistently deferred to executive 

affidavits predicting harm to national security, and have found 

it unwise to undertake searching judicial review.”); the Court 

concludes that it is both rational and plausible that the 

disclosure of this information “reasonably could be expected to 

result in damage to the national security,” E.O. 13526 § 

1.1(a)(4). Accordingly, the Government has a compelling interest 

in protecting this information from disclosure. 

2. The Government Has Demonstrated A Substantial 

Probability That Disclosure Will Harm the 

Government’s Interests 

The Government states that its declarations establish that 

there is a “substantial probability” that the harms articulated 

for each category, see supra Section III.B.1, will occur if the 

information is disclosed: “[t]he Government’s declarants explain 
25 

the serious likely harms that would flow from disclosure of the 

classified information here, and rationally and logically 

articulate why these harms are likely to occur.” Opp’n, ECF No. 

411 at 40 (citing DoD Decl.) 

Movant fails to meaningfully respond—stating only that 

“[t]he government fundamentally fails to make a logical and 

plausible showing that release of the 22 records remaining at 

issue would create a substantial probability of harm to national 

security.” Reply, ECF No. 436 at 9. Movant further asserts that 

the government has “[m]erely assert[ed] that national security 

is implicated without meaningful explanation or clarification—as 

the government repeatedly does—is woefully inadequate under the 

First Amendment.” Id. 

Movant is wrong; the Government has provided detailed 

explanations of the damage to national security that could 

reasonably be expected from disclosure. The Court carefully 

considered them and determined that for each category of 

information at issue, the Government demonstrated it is both 

rational and plausible that the disclosure of each category of 

information “reasonably could be expected to result in damage to 

the national security,” E.O. 13526 § 1.1(a)(4). See supra

Section III.B.1. Movant is also wrong in claiming that 

information that is already publicly available cannot result in 

harm to national security. See Mot. to Intervene, ECF No. 317-1 
26 

at 26. Rather, the weight of authority recognizes the 

distinction between official and unofficial disclosure. See 

e.g., United States v. Zubaydah, 142 S.Ct. 959, 970 (2022); 

Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 

1983)(“[E]ven if a fact . . . is the subject of widespread media 

and public speculation, its official acknowledgment by an 

authoritative source might well be new information that could 

cause damage to the national security.”). For these reasons, the 

Government has demonstrated a substantial probability that 

disclosure will harm the Government’s interests. 

3. The Government Has Demonstrated That There Is No 

Alternative To Non-Disclosure That Will Protect 

the Government’s Compelling Interests and the 

Restriction Is Narrowly Tailored 

The Government states that its declarants explain that “the 

harms to national security flow directly from any disclosure of 

the withheld information, and so there is no alternative short 

of nondisclosure that can adequately protect against these 

harms.” Opp’n, ECF No. 411 at 42. The Government points to the 

public redacted versions of the documents at issue, arguing that 

the “withholding of the classified information redacted from 

these documents is narrowly tailored to the compelling interests 

in national security served by nondisclosure.” Id. (cites a 

case). Movant fails to respond to the Government’s argument. See 

generally Reply, ECF No. 436. 
27 

The Court has already concluded that it is both rational 

and plausible that the disclosure of each category of 

information “reasonably could be expected to result in damage to 

the national security.” See supra Section III.B.1. Accordingly, 

there is no alternative to nondisclosure that will protect the 

government’s compelling interests. And because redacted versions 

of the documents have been filed on the docket in this case, the 

restriction is narrowly tailored. See In re Motions of Dow 

Jones, 142 F.3d 496, 504 (D.C. Cir. 1998)(noting that the media 

was able to receive “non-protected details about what transpired 

before the court”). 

C. Continued Nondisclosure Subject to A Pending Motion For 

Protection Is Appropriate 

The Government states that the “CIA has also withheld from 

public release any information which is the subject of a pending 

motion for protection pursuant to the governing protective 

order.” Opp’n, ECF No. 411 at 13 (citing CIA Decl. and 

describing the protective orders in the Guantanamo Bay habeas 

litigation). Movant argues that this category should be rejected 

as a basis for withholding information, but provides no 

authority in support of his objection. Reply, ECF No. 436 at 24. 

The Court agrees that continued non-disclosure of information 

subject to a pending motion for protection is appropriate. The 

TS/SCI Protective Order in this case provides as follows: 
28 

Should government counsel in these 

consolidated cases wish to have the Court deem 

any document or information “protected,” 

government counsel shall disclose the 

information to qualified counsel for 

petitioners—i.e., counsel who have satisfied 

the necessary prerequisites of this TS/SCI 

Protective Order for the viewing of protected 

information—and attempt to reach an agreement 

about the designation of the information prior 

to filing a motion with the Court.

Petitioners’ counsel shall treat such 

disclosed information as protected unless and 

until the Court rules that the information 

should not be designated as protected. 

TS/SCI Protective Order, ECF No. 77 ¶ 35. Requiring disclosure 

at this time “would effectively moot” this Court’s future 

ruling. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d 

Cir. 2004)(once information is unsealed, questions of continued 

nondisclosure are moot because courts “do not have the power . . 

. to make what has thus become public private again”). 

IV. Conclusion and Order 

 For the reasons explained above, it is hereby 

ORDERED that Motion to Intervene and Unseal, ECF No. 317, 

is GRANTED IN PART, DENIED IN PART, AND FOUND AS MOOT IN PART. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 June 27, 2023